Richard Pildes looks on the money when you line up two recent pieces of his with the decision in Hamdan. In the most recent Harvard Law Review, he and Daryl Levinson argue that separation of powers is contingent on divided control of the political branches, and that one-party (“unified”) government should push the Supreme Court to read congressional intent less generously to authorize executive unilateralism, specifically in the context of wartime. “A default rule against latitudinous interpretations in support of executive power during unified government could be an action-forcing mechanism to press a reluctant, but not ideologically recalcitrant, Congress to share responsibility for these difficult choices — or at least give them a serious airing.”

That’s a pretty plausible explanation of where the Court may have been coming from in Hamdan (no cite to Pildes – it’s hardly the kind of rationale that the Court is likely openly to acknowledge, as Pildes himself recognizes), adopting a narrow interpretation of the AUMF and forcing Congress to take a focused look at the tribunals. The counterfactual: Would it have come out with the same result if we had a Democrat Congress?

The Harvard piece, along with a 2004 essay with Sam Issacharoff, also maps well onto Hamdan in extracting a process-based, institutionally-focused tradition in wartime decisionmaking from the Court. The Court has threaded the poles of rights-based idelaism on the one hand and deference to executive unilateralism on the other, looking instead for the reassurance of bilateral agreement between the political branches. The Youngstown story is of course well known along these lines. Less familiar is Pildes’ retelling of Milligan and Korematsu. Korematsu, he argues, was less important than Endo, in which the Court struck down the continued detention of Japanese-Americans for lack of congressional authorization. Milligan was rights-based, no doubt, but was also an institutional disaster for the Court, drawing serious political fire not for its result but more for its reasoning and forcing a retreat to a less aggressive, process-based approach in McCardle.

I’m not sure this account works seamlessly as a matter of history (how, for instance, does it explain the post-Vietnam era in which the Court steered completely clear of insinuating itself in wartime episodes, the plain command of the War Powers Resolution notwithstanding). But there is some powerful stuff here. In the Milligan story, particularly, there was a clear lesson for the Hamdan court: play it modestly. That’s what it did, and even though we are witnessing a lot of turbulence in the wake of the decision, it doesn’t look like any of it is likely to take the Court down.

Professor Jeremy Rabkin of Cornell, a leading critic of the liberal internationalist movement in the academy, offers a surprisingly soft critique of the Supreme Court’s decision in Hamdan (a decision that is fast becoming the new rallying cry for conservatives). Rabkin, a frequent critic of the ICC, the use of international law in constitutional interpretation, and many international law regimes in general, is far less worked up about Hamdan. It’s wrong, he says, but it is certainly defensible. Hence, Congress, which is supreme in this area, should be the focus now. He concludes:

It’s not necessary to damn the Court’s liberals or rant about disloyalty. The Court’s majority has asked Congress to clarify U.S. war policy in this area. The clarification should include the stipulation that war measures involving unlawful combatants shouldn’t be determined by ordinary courts. When it comes to terrorists captured in foreign lands, our priority can’t be litigation or even lawfare. We are waging war. And war is too important to be left to Supreme Court justices.

This sounds about right to me. The Court made a reasonable and justifiable decision and the advocates who fought for and won this decision are reasonable and fair people. Reasonable and fair people can be wrong, of course, but being wrong doesn’t make them traitors or criminals. I just wish both sides to this debate would keep this in mind.

Professor Ken Anderson has some belated and interesting commentary on the Hamdan decision over at his blog. He questions the buzz about the wholesale application of the Geneva Conventions in light of the characterization of the war on terror as a conflict “not of an international character.” Here is an excerpt:

[T]here are analytic problems with the Court’s reasoning here – historically, Common Article Three was intended to cover civil wars and internal armed conflicts, wars within the territory of a state, not international wars, and to provide a minimum – note minimum – level of humanity in how they were conducted. The characterization of the US invasion of Afghanistan, even somehow limited to the Al Qaeda part, as a war not of an international character is analytically questionable, even taking into account the fact that an important party in the conflict, Al Qaeda, is a non-state actor. It is true that the Bush administration made this distinction of “two” conflicts; I think it was as dubious on briefs as it is in the opinion, because it requires a wholly artificial distinction that simply does not exist on the battlefield. Analytically, on the one hand, far from a civil war between a government and nonstate actors within the territory of a state, the Afghanistan war is the invasion of the territory of a state by another state – the cuts against calling it an armed conflict “not of an international character.” On the other hand, if you conceive of the war against Al Qaeda as a conflict separate from the conflict against Afghanistan, then because Al Qaeda is a nonstate actor, Common Article Three might apply, because it is one of the few parts of the Conventions (besides, eg, the POW definitions applicable to resistance groups in III Geneva article 4) applicable to nonstate actors as such.

(But it striking how Justice Stevens interpreted the language of Common Article Three – not by looking at official ICRC commentary on the diplomatic conferences and what they intended, for example – but instead by consulting, among other things, Webster’s dictionary. If I were the ICRC’s lawyers, I think I would be quietly unhappy with how it is that US courts go about interpreting legal documents with their own long legal histories.)

Analytically questionable or not, the Hamdan decision has applied Common Article Three on the basis of a finding about the nature of the armed conflict. But that finding – that it is a war “not of an international character” – has other consequences that perhaps the Court considered, perhaps not. Certainly the press commentary does not seem to have considered it. Viz., if we are dealing with an armed conflict “not of an international character,” then it is not an international armed conflict. And if it is not an international armed conflict, then (so far as I can tell on an initial read) nearly all of the rest of the Geneva Conventions do not apply to these detainees, because the rest of the Geneva Conventions apply on their terms only to international armed conflicts….

What Common Article Three gives to detainees, present and future, is the promise of humane treatment. It is a minimum, and deliberately far below what is promised to protected persons under the full Geneva Conventions. It is quite misleading for press reports, for example, to refer to Hamdan as imposing the Geneva Conventions when what is imposed are default minimum standards of humanity where the Geneva Conventions as normally thought of do not apply. And what constitutes humane treatment, including the various specifics found in the text of Common Article Three, is open to considerable interpretation. For that reason, the ability of private parties to bring actions directly under the Geneva Conventions is a key question under Hamdan – and a key question that should be addressed by Congress.

So I think Hamdan has done much less than the buzz indicates – or perhaps this is an attempt by the activist community and the press to make a certain interpretation of Hamdan self-fulfilling prophecy. I don’t know. But I do think that it raises the possibility of legal results in international humantarian law that the Court itself did not anticipate. Maybe it considered the fact that if Common Article Three applies, nearly all the rest of the Conventions do not – maybe it didn’t.

As Marty Lederman predicted, those memos are being written. The FT is reporting that in the wake of Hamdan, the Pentagon has deemed Common Article 3 to apply to all detainees in U.S. custody. The timing is key, as it should signal to Congress that the Administration isn’t interested in legislation overriding US obligations under the Geneva Conventions.

In the lead-up to this week’s hearings on military tribunals, starting today at the Senate Judiciary Committee, here’s a sampling of editorial opinion. The Washington Post, which has been relatively centrist on detainee issues, suggests tweaking the military code of justice to apply to terror suspects, for instance with respect to the use of highly classified information. Scott Silliman, who will be testifying today, argues that court martials are the way to go. That doesn’t seem likely, given the dignity it would be perceived as extending to the detainees. Even less likely to be adopted is David Scheffer’s well-argued recommendation that detainees be extended full POW status (something of course that Hamdan doesn’t even really hint at). David Ignatius has a useful column suggesting a multilateral approach to revising the laws of war to account for the new challenges of terrorism. Finally, in the LA Times, Jonah Goldberg brings down Hamdan and Superman together, as insidious examples of creeping cosmopolitanism.

Update: Marty has a typically incisive instant analysis over at Balkinization, including a copy of the DoD memo and a letter from Jack Goldsmith, James Comey, Larry Thompson, and Patrick Philbin in support of the Haynes nomination.

The NYT has a useful account of the brewing debate in Congress over how to respond to the Supreme Court’s Hamdan decision. According to the article, Congress may spend the rest of the summer dealing with this. Here are some of the options:

(1) A one-sentence statute repealing Hamdan’s interpretation of the Uniform Code of Military Justice, essentially completely restoring the pre-Hamdan executive system of control

(2) A comprehensive statute creating and regulating military commissions providing for special rules of evidence,etc.

(3) Nothing – and rely on court martials.

Not surprisingly, number 2 looks like the preferred option so far. In that case, the devil really will be in the details.

One question of particular interest, which I have previously blogged about. Can Congress overrule the Supreme Court’s interpretation of the Geneva Conventions? I think the answer is yes, but expect lots of wailing if Congress moves in that direction.

John Yoo has a predictably critical L.A. Times op-ed today on Hamdan. The piece trots out the Lincoln and FDR comparisons, and argues that the decision will “hamper the ability of future presidents to respond to emergencies.” The analysis is no more persuasive than previous defenses of the Administration’s anything-goes approach. It may be true that the Court’s “lack of judicial restraint . . . would have shocked its predecessors.” But there are other things going on here that would have shocked them, too. (For one small difference in the m.o. of the Roosevelt and Bush administrations, see this post by Eric Muller.) And Hamdan hardly qualifies as an exercise in “judicial micromanagement,” as Yoo charges. Although the ruling focused on particulars, the Court was sweeping broadly at the same time that it was careful not to take the last word if the President and Congress decide otherwise (which of course Yoo also has to recognizes, somewhat incongruously). As for future administrations, if a real emergency presents itself in such a way as to require the Court to step aside, I’m sure it won’t have a problem getting around Hamdan to do so.

At some level one has to admire Yoo’s persistence in sticking to his guns on the policies he helped to frame. On the other hand, he may be too personally invested in those policies to illuminate them usefully as they play out in directions he obviously didn’t predict. It would be encouraging to see some sort of recognition in his post-DOJ writings and appearances that things haven’t worked here quite as they should have, and that it’s not all the Supreme Court’s fault.

I wanted to offer one final post on Hamdan. Robert Araujo at Mirror of Justice as this interesting post on Hamdan and the use of comparative and international law:

I am sure I join many others who are still working their ways through the Hamdan v. Rumsfeld decision. At this stage I would like to make a brief observation about two issues addressed by the Court in this case. While references are made by members of the Court to international law, particularly the Geneva Conventions of 1949, little is said about the present day international criminal tribunals. I believe one reference is made in the context of the ICTY (International Criminal Tribunal for the Former Yugoslavia) regarding “conspiracy.” While the Court took strong views about international law in Roper v. Simmons and Texas v. Lawrence, it was less bold in relying on international law, especially international criminal law, in the Hamdan case. I was surprised that the majority/plurality in particular did not make any reference to the Rome Statute of the International Criminal Court. While that Statute’s provisions still remain largely unexplored in actual case applications, we need to be mindful about the fact that the Rome Statute addresses “conspiracy-type” collaboration in discussing individual criminal responsibility in Article 25. Moreover, there are provisions within the Statute itself along with the accompanying Rules of Procedure and Evidence which just might allow in camera ex parte proceedings from which the defendant/accused is excluded. Again, it will take some time to clarify the meaning of these provisions of the Rome Statute and its Rules through case application and the development of the ICC’s jurisprudence. However, it would be premature at this time to say that the Military Commissions criticized by the Court in Hamdan are unlike the proceedings that could take place under the ICC. Perhaps Justice Scalia was on to something in his dissenting opinion in Roper when he criticized his colleagues for selective reliance on international law in Constitutional adjudication.

I am not sufficiently knowledgeable about the jurisprudence of the international criminal tribunals to know whether they have clearly spoken on the issue of conspiracy as a law of war violation. The Court in Hamdan at footnote 40 argued in passing that there was no such offense under ICTY jurisprudence. And David Scheffer has argued that joint criminal enterprise is recognized under the ICTY, but he contends that it is different from conspiracy. Unlike conspiracy, Scheffer maintains that joint criminal enterprise requires agreement and overt action under the ICTY precedents of Ojdanic and Vasiljevic. But even if that is true, it would appear that the counts against Hamdan do indeed allege four overt acts that Hamdan committed in furtherance of Al Qaeda’s joint criminal enterprise, including transporting weapons for Al Qaeda and serving as the bodyguard and driver for Bin Laden to lead Al Qaeda meetings. How is that not sufficient under Ojdanic and Vasiljevic? Why could the Court not have interpreted the conspiracy charge against Hamdan subject to this international law limitation that there be an alleged overt act in furtherance of the agreement? That is analogous to what the Court did in Hamdi in finding an implied limitation on presidential action based on law of war principles.

Moreover, even if the ICTY precedents are unavailing, what about the Rome Statute of the ICC? It would appear that Article 25(3) of the Rome Statute does indeed recognize criminal responsibility for conduct that constitutes conspiracy or something closely akin to that offense (i.e., joint criminal enterprise). It provides in relevant part:

“[A] person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; [or] (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime…

Can someone explain why the counts against Hamdan that specify concrete and overt action by Hamdan in concert with Bin Laden himself would not satisfy the requirements of Article 25(3) of the ICC statute?

As best I can tell, Araujo appears to be correct that Justices Stevens, Breyer, Ginsburg, and Souter selectively ignored a key component of international law jurisprudence that was contrary to their preferred outcome.

One small sidenote about Hamdan that struck me this morning: the superiority of the blogosphere over the mainsteam media to address breaking news such as Supreme Court decisions. Were any of you just dying to know what Adam Liptak or Linda Greenhouse of the New York Times thought about Hamdan? I had very little interest in their take on the case. For me at least, I kept turning again and again to a half dozen blogs for the latest analysis. I did not particularly care what the Washington Post or the New York Times thought. I wanted to know what law bloggers thought about the case. (The closest the mainstream media got to insightful commentary about Hamdan came from Walter Dellinger on Slate, who unfortunately displayed irrational exuberance in his initial comments about the case, erroneously describing Hamdan as “the most important decision on Presidential power ever.”)

The subplot about Hamdan is how important comments from legal experts on the blogosphere were to digesting and understanding the case. It is a complicated decision that requires detailed analysis to comprehend. Blogs far exceeded the mainstream media in quickly appreciated its significance and import. Legal blogs are a perfect medium for this kind of breaking news and with Hamdan they lived up to their potential. The mainstream media fared far worse on this story.

Georgetown’s new faculty blog has some great stuff on Hamdan, including summaries of a recent panel about Hamdan that included Neal Katyal (lead counsel for Hamdan), David Luban, Mark Tushnet, and Carlos Vázquez. (There also is an audio of the panel available here and a C-Span video available here).

Having now digested the Hamdan decision further, I wanted to offer a few initial thoughts about its significance. These are just initial impressions, so I am open to correction (and please tell me where you think I need correction). My focus is slightly different than others, and will address how the Bush Administration and Congress must respond to the Court’s decision.

First and foremost, Justice Kennedy’s decision (joined by Justice Souter and Breyer as to Parts I and II) is the critical opinion for the Administration. Any attempt to satisfy the Supreme Court’s concerns in Hamdan must do no more than satisfy Justice Kennedy, because any future case involving military commissions will include Chief Justice Roberts. If the Congress and the Administration can satisfy Justice Kennedy, then it will satisfy any future Supreme Court review by a conservative majority that will include Chief Justice Roberts (Roberts’ views are fairly obvious from his D.C. Circuit opinion).

Second, at bottom this case is about Youngstown. But this case is a weak Youngstown prong-three case in which “the President takes measures incompatible with the expressed or implied will of Congress.” From an academic perspective, Hamdan will provide useful opportunities to address the outer limits of express or implied prohibitions. Academics will spend significant time and effort outlining whether the statutes in question are a genuine instance of a Youngstown prong-three case of express or implied incompatibility or a Youngstown prong-one case of express or implied authorization. That in turn will require a parsing of a statute that at bottom only requires the Executive to take action where “practicable” and another that imposes jurisdictional limits that incorporate an international law obligation to utilize a “regularly constituted court.” So in essence the case rests on whether military commissions satisfy certain statutory “practicable” uniformity and conformity requirements and whether the military commissions are “regularly constituted.”

That will be the key academic debate about Hamdan. But from a practical perspective, Hamdan should not be a particularly significant hurdle for the continued use of military commissions. Certainly Congress and the Administration share a common interest in establishing acceptable and effective procedures for trying and convicting alleged terrorists. The Administration should be able to work closely with Congress to satisfy the Supreme Court’s concerns. From my reading of the core requirements of Hamdan (i.e., the requirements that Justice Kennedy shares), Congress could do so in one of two ways. First, it could modify the requirements of Sections 821 and 836 of the UCMJ. If it takes this approach, it must modify Section 836’s practicable conformity with military courts requirement and its practicable uniformity with courts-martial procedures. It also must make some modification to the jurisdiction of the military commissions under Section 821, either by clarifying and defining the laws of war, or by otherwise broadening the jurisdiction of the military commissions to include other offenses, such as terrorism. (The Administration without the assistance of Congress also could bring additional counts against Hamdan or future defendants that more closely fall within the laws of war, such as “illegal belligerency” suggested by Geoffrey Corn.)

Alternatively, Congress could modify the military commissions by making some structural changes that satisfy the Court’s concerns. This does not seem to be overly complicated. There may be other structural problems I am missing on a first read, but at a minimum this would require Congress to modify the structure so that the commissions make use of military judges rather than military lawyers. Second, modify and limit the Executive branch’s role in the military commissions by modifying the supervisory authority of the Appointing Authority. Third, the composition must use five-member commissions rather than three-member commissions. Fourth, address evidentiary concerns by utilizing evidentiary procedures that are more closely in uniformity with the Military Rules of Evidence. These structural changes would mollify Justice Kennedy’s concerns for the “fairness of the proceedings and the independence of the court.”

Of course, there is more to Hamdan than this. But in terms of how Congress and the Administration should respond to the decision, that is my initial impression of what must be done. I for one have little doubt that Congress will make the necessary changes to allow for the continued use of military commissions against the likes of Hamdan.

Along with Julian, I’m coming around to the position that this is a very big deal, and that it’s likely to have important consequences, short and long-term. But those consequences won’t necessarily happen as a matter of course. The Administration will resist, and in some contexts it may be able to do so successfully.

1) I see now how Marty Lederman’s equation (under which Hamdan spells the end of more extreme interrogation techniques) doesn’t depend on judicial enforcement of common article 3 in other contexts. I’m sure those memos are being written at DoD and OLC. My question here: couldn’t those memos reject Hamdan’s GC holding as applied to other contexts on a theory of presidential primacy in treaty interpretation, except in particular cases that have been judicially resolved? Isn’t it possible that the administration can reject the application of CA3 in other contexts, Hamdan notwithstanding, and do so fairly safely where the probability of a court case is low? I’m not saying this position would be the right one, but that’s hardly going to stop this bunch. In other words, who’s to stop the memos from being written some way, even an implausible way, to cabin Hamdan from spilling over into the interrogation context?

2) The decision clearly casts a darker shadow on the FISA/warrantless surveillance questions, as others are pointing out, but precisely because that question is more likely to end up in court. But is this “our modern Youngstown,” as Steve Vladeck argues here, or as Walter Dellinger writes here, “simply the most important decision on presidential power and the rule of law ever”? I don’t think so. The decision is too rhetorically parsimonious. Other than footnote 23, there’s hardly any exposition on war and separation of powers. The parsimony serves the court’s decision well today – it reduces the risk that the Court will take an institutional hit, by giving opponents less to shoot at.

No mistake about it, this decision took some guts (although given the prevailing negative atmospherics around Guantanamo, less than would otherwise have been the case). Stevens’ rhetorical restraint makes sense in that respect – as in, we’re going to do the brave, right thing here, but we’re going to be as modest as possible in the way we do it. But that will reduce the decision’s staying power. It won’t, in contrast to Youngstown, be a decision for the ages.

3) As for Congress picking up the ball, that looks likely. Two things I didn’t figure into my hunch yesterday to the contrary: a) This administration miscalculates (to put it charitably) whenever it’s given the opportunity. Will someone please explain to me why Bush & Co. think this is so important an element of the anti-terrorism response? After all, it had charged only ten detainees before the commissions. The marginal benefit of looser commission procedures must be quite marginal. Why not just take Hamdan as an excuse to drop a project that has proved such a miserable failure? b) Congress has never really had that much of a problem with Gitmo. Authorization for the commissions would probably be forthcoming with relatively minimal expenditure of political capital on the Administration’s part.

Of course, that fails to consider the international costs of such authorization. If Congress authorizes commissions with the same procedures that the Court found in conflict with CA3 (something Specter’s bill appears to do), the drumbeat from abroad will only get louder. How can the commissions make sense from that perspective, given all the hits we’ve already taken on detainee issues? If you don’t want to give the detainees the dignity of a court martial, set up a commission that in every way tracks court martial procedures. Otherwise this is just way more of a headache than it’s worth.

For those who haven’t had enough of reading my thoughts on Hamdan, I have a short contribution to an online symposium hosted by National Review Online on the Hamdan decision. In it, I focus on the Hamdan court’s refusal to defer to the President’s interpretation of treaties and customary international law.

September 26, 2017In Celebratus: M. Cherif Bassiouni (1937-2017)[Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]
Cherif Bassiouni, Distinguished Research Professor of Law Emeritus...

August 31, 2017Symposium on Occupation Law: Control and the Law of Occupation[This post is part of an ongoing symposium on Professor Aeyal Gross’s bookThe Writing on the Wall: Rethinking the International Law of Occupation(CUP, 2017).]
One of the interesting observations Aeyal makes in his important new book The Writ...